EXECUTIVE SEVERANCE AGREEMENT AND RELEASE OF CLAIMS
Exhibit 10.1
This
Executive Severance Agreement and Release of Claims
(“Agreement”) is made by and between Command Center,
Inc. (the “Company”) and Xxxxxx X. Xxxxx
(“Executive”).
RECITALS
A.
Executive is
voluntarily resigning from his employment with the
Company.
B.
The Company wishes
to provide for a severance payment to Executive and Executive and
Company wish to release each other from any and all claims arising
from or related to Executive’s employment relationship with
the Company.
C.
The parties are
simultaneously entering into a consulting agreement (the
“Consulting Agreement”).
AGREEMENT
NOW THEREFORE, in consideration of the
mutual promises made herein, the Company and Executive
(collectively referred to as the “Parties”) hereby
agree as follows:
1.
Resignation.
Executive
acknowledges that he submitted his resignation as an officer and
employee of the Company, to be effective on May 25, 2018. Executive
acknowledges and agrees that his employment in any capacity with
the Company, including as Executive Vice President and General
Counsel, shall cease as of the end of business on May 25, 2018 (the
“Effective Date”). Notwithstanding the foregoing,
Executive shall continue to perform all of his duties as Executive
Vice President and General Counsel of the Company through the
Effective Date.
2.
Consideration.
(a)
Executive shall
continue to receive his regular base pay through the Effective
Date. If Executive is presently a participant in any of the health
insurance plans offered by Company, unless cancelled by Executive,
his participation shall continue through the Effective Date or May
31, 2018, whichever is later, subject to deduction from
Executive’s pay for Executive’s usual and required
share of premiums. Executive will not be eligible to participate in
any of Company’s other benefits programs beyond the Effective
Date.
(b)
As further
consideration, provided Executive has not rescinded this Agreement
in accordance with Section 7 below, the Company will pay to
Executive, over the course of four months in regular installments,
severance in the additional gross amount of $75,000. Severance
payments will be made in two-week intervals on the Company’s
regular payroll dates, less appropriate withholdings as
supplemental wages, beginning June 8, 2018, and continuing through
September 28, 2018. Executive agrees and acknowledges no additional
severance payments will be made to Executive after this
date.
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(c)
Additionally, not
later than ten days after the Effective Date, the Company shall pay
Executive an amount equal to $9,824.28, less usual withholdings, as
and for full payment of all of Executive’s accrued but unused
vacation time. The parties agree that no additional vacation or
sick leave time will accrue after the Effective Date and that the
payment specified herein regarding vacation time includes all
vacation time payments due to Executive. No payment for accrued but
unused sick time will be made to Executive.
(d)
Executive
acknowledges that except for the payments set forth in this Section
2 and any payments that may become due under the Consulting
Agreement, no other compensation or payments are due and that no
additional amounts will be paid to him under this
Agreement.
3.
Effective Upon
Execution. This
Agreement shall become effective upon execution by both parties;
provided however, Executive shall have the right to rescind this
Agreement in accordance with Section 7 below within seven (7) days
following the date this Agreement is fully executed. In the event
Executive exercises his right to rescind this Agreement, all of the
provisions hereof, including any compensation to be paid to
Executive in excess of the payments specified in Section 2.a and
2.c above, shall be null and void.
4.
Return of
Property. Executive
shall destroy or return, as specified by Company and at
Company’s expense, all Company property and confidential and
proprietary information in his possession within 60 days following
receipt of Company’s instructions for destruction or return.
If so requested by Company, Executive will provide a written
certification that such destruction and/or return has been
completed. Company acknowledges that Executive has provided to
Company information as to all password-protected systems, websites
and files that he has used and/or accessed during his employment,
along with the user identification, passwords and all other login
credentials that may be required to access such systems, sites and
files, all of which Executive represents to be complete and
accurate. Company also acknowledges that, Executive has also
prepared and submitted to Company copies of all electronic files in
Executive’s possession that belong to Company or that
constitute work product or Confidential Information of or related
to the Company and/or Executive’s work for and/or
representation of Company, all of which Executive represents to be
complete and accurate. Executive acknowledges that following the
Effective Date, any items of personal property belonging to him and
located at the office of the Company, shall be deemed to have been
given and transferred by him to the Company.
5.
Release of Claims
by Company.
(a)
Company releases
Executive and his heirs, successors and assigns, from, and agrees
not to xxx concerning, any claim, duty, obligation or cause of
action, loss or expense of every kind and description, whether
presently known or unknown, suspected or unsuspected, that Company
may possess arising from any omissions, acts or facts, that have
occurred up until and including the Effective Date, including
without limitation, any and all claims relating to or arising from
Executive’s relationship or prior dealings with the Company,
including but not limited to Executive’s employment with the
Company, and excepting only claims for acts of theft, fraud or
embezzlement.
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(b)
Any incentive-based
compensation, or any other compensation, paid to the Executive
pursuant to this Agreement or any other agreement or arrangement
with the Company which is subject to recovery under any law,
government regulation or stock exchange listing requirement, will
be subject to such deductions and clawback as may be required to be
made pursuant to such law, government regulation or stock exchange
listing requirement. Any determination for clawback or recovery
shall be made in accordance with any applicable law or
regulation.
6.
Release of Claims
by Executive. Except
as otherwise specifically provided herein, Executive releases the
Company and its officers, directors, representatives and affiliated
companies, successors and assigns, on behalf of himself, and his
heirs, family members, representatives, successors and assigns,
from, and agrees not to xxx concerning, any claim, duty, obligation
or cause of action, loss or expense of every kind and description,
whether presently known or unknown, suspected or unsuspected, that
he may possess arising from any omissions, acts or facts, that have
occurred up until and including the Effective Date, including,
without limitation:
(a)
all claims relating
to or arising from Executive’s employment relationship with
the Company and the termination of that relationship;
(b)
all claims for
wrongful discharge of employment; termination in violation of
public policy; discrimination; harassment of any kind; retaliation;
constructive discharge; breach of contract, both express and
implied; breach of a covenant of good faith and fair dealing, both
express and implied; promissory estoppel; negligent or intentional
infliction of emotional distress; negligent or intentional
misrepresentation; negligent or intentional interference with
contract, business relationship or prospective economic advantage;
unfair business practices; defamation; libel; slander; negligence;
personal injury; assault; battery; invasion of privacy; false
imprisonment; conversion; and all other causes of
action;
(c)
all claims for
violation of any federal, state or municipal statute, ordinance,
rule or regulation, including, but not limited to, Title VII of the
Civil Rights Act of 1964, the Civil Rights Act of 1991, the Age
Discrimination in Employment Act of 1967, the Americans with
Disabilities Act of 1990, the Fair Labor Standards Act, the
Employee Retirement Income Security Act of 1974, and the Older
Workers Benefit Protection Act;
(d)
all claims pursuant
to any “whistleblower” law or regulation;
(e)
all claims arising
out of any other laws and regulations relating to employment or
employment discrimination, harassment or retaliation;
and
(f)
all claims for
attorneys’ fees and costs.
The
parties acknowledge and agree that the releases set forth herein
shall not apply to and shall have no effect whatsoever on shares of
the Company’s common stock or stock options directly or
indirectly owned by Executive now or at any time in the future, all
of which shall remain the property of Executive. Notwithstanding
anything herein, any stock options previously issued by Company to
Executive as of the Effective Date shall vest, if at all, pursuant
to the terms of the stock option award granted to Executive. Any
stock options previously issued to Executive and that are vested or
which will become vested and exercisable under the terms of the
specific option award will terminate pursuant to the Stock
Incentive Plan under which the options were issued to
Executive.
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Notwithstanding the
releases set forth herein, to the fullest extent of the law, as
well as the Articles of Incorporation, as amended, and the Bylaws,
as amended, Company shall continue to indemnify Executive as a
former officer of the Company.
The
Company and Executive agree that the releases set forth in this
section shall be and remain in effect in all respects as a complete
general releases as to all matters, except as otherwise specified.
These releases do not extend to any obligations incurred under this
Agreement or the Consulting Agreement.
7.
Acknowledgment of
Waiver of Claims under ADEA. Executive acknowledges that he is
waiving and releasing any rights he may have under the Age
Discrimination in Employment Act of 1967 (“ADEA”) and
that this waiver and release is knowing and voluntary. Executive
and the Company agree that this waiver and release does not apply
to any rights or claims that may arise under ADEA after the date
this Agreement is signed by Executive. Executive acknowledges that
the consideration given for this waiver and release agreement is in
addition to anything of value to which Executive was already
entitled. Executive further acknowledges that he has been advised
by this writing that: (a) he should consult with an attorney prior
to executing this Agreement; (b) he could have at least twenty-one
(21) days within which to consider this Agreement and that if he
voluntarily chooses not to utilize the full twenty-one (21)
calendar days, he has had a fully adequate opportunity to review
this Agreement before signing it; (c) he has at least seven (7)
days following the execution of this Agreement by the parties to
revoke or rescind the Agreement; and (d) this Agreement shall not
be effective until after the revocation period has
expired.
8.
No Pending or
Future Lawsuits.
Executive represents that he has no lawsuits, claims, or actions
pending in his name, or on behalf of any other person or entity,
against the Company or any other person or entity referred to
herein. Executive also represents that he does not intend to bring
any claims on his own behalf or on behalf of any other person or
entity against the Company or any other person or entity referred
to herein. If Executive has brought any administrative claims or
complaints with any governmental agency, against the Company and/or
any officer, director or employee of the Company, all such claims
are hereby fully settled and resolved under the terms of this
Agreement.
9.
Confidential
Information.
(a)
For purposes of
this Agreement, the words “Confidential Information”
include all of the following:
(1)
The methods,
procedures, plans, techniques, systems, data, processes, formats
and designs utilized in Company’s operations;
(2)
The software
utilized by Company;
(3)
All information
relating to Company’s financial condition and operational and
financial plans and goals;
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(4)
All information
pertaining to Company’s customers, as well as prospective
customers, including customer lists and usage patterns, pricing and
bidding practices, customer contact information, and marketing and
sales practices, methods and plans;
(5)
All business forms
and all operations, sales and training manuals; and
(6)
All other
information which by its nature would be reasonably understood to
be confidential.
(b)
Executive agrees
not to disclose any Confidential Information to others, use any
Confidential Information for his own benefit or make copies of any
Confidential Information without Company’s written consent,
whether during or after Executive’s employment with Company.
Executive also agrees to destroy or return all Confidential
Information in his possession to Company as provided in Section 4
hereof.
(c)
For purposes of
this Agreement the words “Confidential Information” do
not include any information that is or becomes generally available
to the public, other than as a result of disclosure in violation of
this agreement.
10.
Nondisparagement.
(a)
From the date of
execution of this Agreement and continuing for a period of one
year, Executive shall (i) refrain from making any public
disparaging statements concerning Company, its officers, directors,
employees or representatives or its business or operations and (ii)
refrain from posting on any Internet site or online message board,
chat room or blog any statement concerning Company, whether
disparaging or not. Similarly, from the date of execution of this
Agreement and continuing for a period of one year, the Company
agrees to refrain from making or posting any disparaging statement
about or concerning Executive.
(b)
Should any third
parties, including prospective employers, inquire as to the
employment of Executive with Company, Company will confirm
Executive’s dates of employment, title, final rate of pay,
and separation via voluntary resignation/retirement.
(c)
This Section 10
shall not prohibit the Parties from disclosing any information in
response to a lawful subpoena or court order requiring disclosure
of information or otherwise as required by law. Similarly, this
section is not intended to prevent either party from providing
truthful testimony and information regarding the other party in any
administrative proceeding, when requested by a governmental agency
to do so, whether with or without a subpoena.
11.
Costs.
Except as otherwise specifically stated herein, the Parties shall
each bear their own costs, expert fees, attorneys’ fees and
other fees incurred in connection with this Agreement.
12.
Arbitration.
The Parties agree that all disputes arising out of the terms of
this Agreement, their interpretation, and any of the matters herein
released, shall be subject to binding arbitration before the
American Arbitration Association, at its office located nearest the
Company’s corporate office in Denver, Colorado, under its
Employment Dispute Resolution Rules. The Parties agree that the
prevailing party in any arbitration shall be entitled to a
judgment, order and injunctive relief as may be appropriate in any
court of competent jurisdiction to enforce the arbitration award.
Nothing set forth in this section shall prevent either party from
seeking injunctive relief in a court of competent
jurisdiction.
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13.
Authority.
The Company represents and warrants that the undersigned has the
authority to act on behalf of the Company and to bind the Company
and all who may claim through it to the terms and conditions of
this Agreement. Executive represents and warrants that he has the
capacity to act on his own behalf and on behalf of all who might
claim through him to bind them to the terms and conditions of this
Agreement. Each Party warrants and represents that there are no
liens or claims of lien or assignments in law or equity or
otherwise of or against any of the claims or causes of action
released herein.
14.
No
Representations. Each
party represents that it has had the opportunity to consult with an
attorney, and has carefully read and understands the scope and
effect of the provisions of this Agreement. Neither party has
relied upon any representations or statements made by the other
party hereto which are not specifically set forth in this
Agreement.
15.
Severability.
In the event that any provision hereof becomes or is declared by a
court of competent jurisdiction or arbitrator to be illegal,
unenforceable or void, that provision shall be modified so that it
is legal and enforceable and in a manner which most closely
reflects the intent of the Parties.
16.
Entire
Agreement. Except as
provided in the following sentence, this Agreement represents the
entire agreement and understanding between the Company and
Executive concerning Executive’s separation from the Company
and supersedes and replaces all prior agreements and
understandings. All of the covenants and other post-employment
provisions of any employment contract entered into between the
Parties, which are specified to survive termination of employment
or which by their nature apply following termination of employment,
shall remain in full force and effect.
17.
No Oral
Modification. This
Agreement may only be amended in writing signed by Executive and
the Company.
18.
Governing
Law. This Agreement
shall be governed by the laws of the State of
Colorado.
19.
Counterparts.
This Agreement may be executed in counterparts, and each
counterpart shall have the same force and effect as an original and
shall constitute an effective, binding agreement on the part of
each of the undersigned.
20.
Voluntary Execution
of Agreement. This
Agreement is executed voluntarily and without any duress or undue
influence on the part or behalf of the Parties hereto, with the
full intent of releasing all claims. The Parties acknowledge
that:
(a)
They have read this Agreement;
(b)
They have been represented in the preparation, negotiation, and
execution of this Agreement by legal counsel of their own choice or
that they have voluntarily declined to seek such
counsel;
(c)
They understand the terms and consequences of this Agreement and of
the releases it contains; and
(d)
They are fully aware of the legal and binding effect of this
Agreement.
21.
Further
Assurances. Following
the effective date of this Agreement, Executive shall sign and
deliver such further documents and instruments as may be reasonably
requested by Company or its counsel, for purposes of carrying out
the intent of this Agreement.
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IN WITNESS WHEREOF, the Parties have
executed this Agreement on the respective dates set forth
below.
EXECUTIVE
Xxxxxx X. Xxxxx
Xxxxxx
X. Xxxxx
Date:
May 25, 2018
Xxxxxxx X. Xxxxxxx,
Xx.
Xxxxxxx
X. Xxxxxxx, Xx.
President &
CEO
Date:
May 25, 2018
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